- Collusive lawsuit settlements harm the public when used to overturn laws
- The State Board of Elections entered a collusive lawsuit in 2020 to alter election laws
- A federal judge limited the damage of the 2020 collusive settlement, and a state law passed in 2021 should make such settlements impossible
This is part of a series of articles about problems with the 2020 election in North Carolina, most of which were detailed in the John Locke Foundation’s report “What Happened in 2020?,” and changes that have taken place since then. The other parts of the series deal with “Zuck bucks” (private election administration funding), mail voting, and same-day-registration “ghost voters.”
The North Carolina State Board of Elections (SBE) and Democratic attorney Marc Elias used a collusive, “friendly” lawsuit settlement to alter election laws during the 2020 election.
The Problem with Collusive Settlements Subverting Laws
Collusive settlements, in which the parties are not in actual conflict, are hardly new. In 1850, the United States Supreme Court dismissed a settlement in Lord v. Veazie. The court pointed out that the problem with the settlement was not just that the plaintiff and defendant did not have an actual conflict, but that their amicable resolution injured others who were not parties to the lawsuit:
[T]he plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be.
In other words, parties should not use a friendly lawsuit to advance their mutual interest against others.
If anything, collusive lawsuits are even more harmful to our rights as citizens when overturning laws because they negate our collective vote for legislators. The Supreme Court noted that in Chicago & Grand Trunk Railway Company v. Wellman (1892):
It never was the thought that by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.
… Our suggestion is only to indicate how easily courts may be misled into doing grievous wrong to the public, and how careful they should be to not declare legislative acts unconstitutional upon agreed and general statements, and without the fullest disclosure of all material facts.
North Carolina experienced such a problem with a friendly lawsuit during the 2020 election.
A Collusive Lawsuit Settlement Alters Election Laws in 2020
In the spring and summer of 2020, SBE Executive Director Karen Brinson Bell tried several times to alter election laws, claiming the changes were needed because of the coronavirus pandemic.
She first requested several election-law changes in two memos (on March 26 and April 22), including to “reduce or eliminate the witness requirement.” The General Assembly responded by passing the Bipartisan Elections Act of 2020 that, among other things, reduced the witness requirement for absentee ballots from two to one.
Brinson Bell also sought to expand her emergency powers to alter election laws, including extending the deadline for county election boards to receive mail ballots. However, the state Rules Review Commission, which ensures administrative regulations comply with state law, was having none of that. It voted unanimously to reject the change. Commissioner Tommy Tucker said during the discussion of the proposed change, “I’m concerned this is an end-run around the public, the General Assembly, and the courts.”
So, Brinson Bell got only part of the election-law changes she wanted from the General Assembly and was frustrated in her attempt to secure emergency powers to alter those laws herself. It looked like the SBE would have to follow election laws as written.
Enter Democratic attorney Marc Elias.
Elias filed a lawsuit against the SBE in Wake County Superior Court in September seeking, among other things, to extend the deadline to accept ballots postmarked by election day and weaken the witness requirement to the point that it was functionally eliminated — two things Brinson Bell had fought for earlier that year.
Despite an almost total victory in a similar lawsuit in August, the SBE board voted to “settle this and several other outstanding lawsuits on state election rules, delegating the details to the Executive Director Karen Brinson Bell and legal staff.” So, Brinson Bell and SBE attorneys were given the green light to negotiate the changes in election law that both she and Elias wanted. A lawsuit does not get much friendlier than that.
The board’s two Republican members later resigned, saying that they had been deceived:
[A]ttorneys from AG Josh Stein’s office did not advise us of the fact that a lot of the concessions made in the settlement have already been denied in a prior case by a federal judge and another case by a state court three-judge panel.
Senate President Pro Tempore Phil Berger and House Speaker Tim Moore intervened as defendants on behalf of the General Assembly to defend election laws because they reasonably believed Bell would not. Nevertheless, Judge Bryan Collins cut them out of the settlement, saying the “Board of Elections could make this change without legislative oversight” and “the law did not require that [Berger and Moore] be consulted on the settlement.”
Fixing the Problem of Collusive Lawsuits
The SBE announced on September 22, 2020, that the settlement had two main elements: a mail ballot “cure process” that gutted the witness requirement and an extension of the mail ballot deadline from three days after election day to nine.
The problem was that Judge Collins had not yet approved the settlement (he approved it on October 2), meaning that the SBE had instituted the change without any legal authorization. SBE General Counsel Katelyn Love then stated in an email that the witness requirement change was actually authorized by the August lawsuit that rejected most plaintiff requests.
That led to a new problem for the SBE: the judge presiding over that case, William Osteen, had authorized no such thing.
In mid-October, Judge Osteen struck down the mail ballot cure process that Brinson Bell and the SBE falsely attributed to his August order. He wrote that “Ms. Bell’s declaration contradicts her testimony before this court” regarding mail ballots without witness signatures.
In another ruling, Osteen addressed Brinson Bell’s claim that she had the authority to alter the mail ballot deadline. He pointed out:
This directly contradicted the Rules Commission’s finding that such a change was outside SBE’s authority. In keeping with Bell’s actions, the State failed to note in argument before this court that Bell’s proposal had been rejected explicitly because SBE lacked statutory authority to exercise its emergency powers [emphasis by underlining in original].
Osteen also found that the SBE change of the mail ballot deadline after mail voting had already started violated the Equal Protection Clause of the 14th Amendment. Nevertheless, owing to the “Purcell principle” prohibition on federal courts making last-minute changes to election law or procedures, he allowed the change to stand.
I wrote in January 2021 that the General Assembly needed to enact a reform to stop collusive lawsuit settlements:
To protect us from similar collusive settlements designed to circumvent North Carolina laws, especially election laws, the General Assembly needs to strengthen and clarify G.S. 1-72.2(b) so that judges cannot cut legislative intervening defendants out of the loop on such settlements.
In other words, judges should not be able to declare, as Judge Collins did, that the law did not require legislative intervening defendants to be consulted in a settlement between a plaintiff and an executive branch defendant.
The 2021 budget, passed by the General Assembly and signed by Gov. Roy Cooper, included a provision concerning when the Speaker of the House and the Senate President Pro Tempore intervene as defendants to defend a law. The provision requires that they must jointly agree to any settlement. If such a law had been in place in 2020, the SBE could not have entered its “sue and settle” arrangement with Elias.
The anti–collusive settlement law is broad. It should protect other state laws from the threat of executive agencies entering settlement agreements to circumvent laws they and like-minded plaintiffs want to see overturned.
